Property Law and Real Estate Commons^™

Time To Overturn Turney, Paul A. Lafata

William & Mary Bill of Rights Journal

No abstract provided.

Kelo And The Games People Play: A Game-Theoretic Analysis Of Kelo V. City Of New London, Derek K. Yonai

Campbell Law Review

This article argues that the Court's holding creates an incentive for private developers to rent-seek by asking local governments to transfer private property to them instead of purchasing it in the private market. Likewise, the Court's holding creates incentives for local governments to take private property pursuant to their eminent domain powers.

Court Preserves Public Access To Newport's Historic Waterfront, Benjamin Spruill

Sea Grant Law Fellow Publications

No abstract provided.

Corporate Investigations, Attorney-Client Privilege, And Selective Waiver: Is A Half-Privilege Worth Having At All?, Colin P. Marks

Faculty Works

As the title suggests, this article is an analysis of the selective waiver doctrine, which allows a party to disclose materials protected by the attorney-client and work product privileges to the government during investigations without waiving the privilege as to third-party litigants. Specifically, the article analyzes the development of the selective waiver doctrine and why recent polices adopted by governmental agencies, specifically the Department of Justice and SEC, have made this doctrine a forefront of conversation amongst litigators, legislators and academics. But is a blanket adoption of the selective waiver doctrine wise?

Courts have taken a variety of approaches to …

Palazzolo, The Public Trust, And The Property Owner's Reasonable Expectations: Takings And The South Carolina Marsh Island Bridge Debate, Erin Ryan

Faculty Publications

No abstract provided.

The Demise Of Federal Takings Litigation, Stewart E. Sterk

William & Mary Law Review

For more than twenty years the Supreme Court has held that a federal takings claim is not ripe until the claimant seeks compensation in state court. The Court's recent opinion in San Remo Hotel, L.P. v. City & County of San Francisco establishes that the federal full faith and credit statute applies to federal takings claims. The Court itself recognized that its decision limits the availability of a federal forum for takings claims. In fact, however, claim preclusion doctrine-not considered or discussed by the Court-may result in more stringent limits on federal court review of takings claims than the Court's …

Haunted By History: Colonial Land Trusts Pose National Threat, Thomas C. Martin

William & Mary Law Review

No abstract provided.

Crystals, Mud, Bapcpa, And The Structure Of Bankruptcy Decisionmaking, R. Wilson Freyermuth

Faculty Publications

A critical feature of any legal system is its formal dispute resolution mechanism. From the perspective of a transactions lawyer, the dispute resolution process should be structured to accomplish (or at least contribute positively toward) doctrinal clarity.

The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett

Michigan Law Review

This Article challenges a foundational assumption about eminent domain- namely, that owners are systematically undercompensated because they receive only fair market value for their property. In fact, scholars may have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of the eminent domain process. The Article examines three ways that "Takers" (i.e., nonjudicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high subjective value properties. (By way of illustration, Professor Garnett discusses evidence that Chicago's freeways were rerouted in the 1950s to avoid …

The Demise Of Federal Takings Litigation, Stewart E. Sterk

Articles

For more than twenty years the Supreme Court has held that a federal takings claim is not ripe until the claimant seeks compensation in state court. The Court's recent opinion in San Remo Hotel, L.P. v. City & County of San Francisco establishes that the federal full faith and credit statute applies to federal takings claims. The Court itself recognized that its decision limits the availability of a federal forum for takings claims. In fact, however, claim preclusion doctrine-not considered or discussed by the Court-may result in more stringent limits on federal court review of takings claims than the Court's …

Decoding Cyberproperty, Francis G. Lastowka

ExpressO

This article examines recent developments in both the doctrine and theory of legal cyberproperty rights. The first part of this article looks primarily at two seminal cases that might be considered bookends to the story of cyberproperty: Thrifty-Tel, Inc. v. Bezenek and Intel v. Hamidi. The second part of this article challenges two assumptions that act as theoretical and rhetorical engines driving arguments for cyberproperty. The first is the assumption that legal prohibitions against interactions with privately owned computing machinery are analogous, from a standpoint of law and policy, to traditional rights of exclusion from the use of or entry …

Losing Control: Regulating Situational Crime Prevention In Mass Private Space, Robert E. Pfeffer

ExpressO

In this article the author puts forth an approach to regulating Situational Crime Prevention (SCP) (i.e. steps to preemptively eliminate or reduce crime, such as preemptive exclusion and closed circuit TV monitoring in Mass Private Space (i.e. private property that has characteristics normally associated with public spaces, such as a large shopping mall).

It has become increasingly common for owners of mass private space to employ SCP techniques such as close circuit television monitoring, exclusion of persons based upon behavior or risk factors and limits on attire, such as colors associated with gangs. While there has been a lively scholarly …

Privatizing Eminent Domain: The Delegation Of A Very Public Power To Private, Non-Profit And Charitable Corporations, Asmara Tekle Johnson

ExpressO

In an age of privatization of many governmental functions such as health care, prison management, and warfare, this Article poses the question as to whether eminent domain should be among them. Unlike other privatized functions, eminent domain is a traditionally governmental and highly coercive power, akin to the government’s power to tax, to arrest individuals, and to license. It is, therefore, a very public power.

In particular, the delegation of this very public power to private, non-profit and charitable corporations has escaped the scrutiny that for-profit private actors have attracted in the wake of the U.S. Supreme Court’s decision in …

Undoing The Native American Graves And Repartriation Act, Lori N. Wight

ExpressO

No abstract provided.

The Restitutionary Approach To Just Compensation, Tim Kowal

ExpressO

In the wake of the Court’s near-total refusal to impose a check on the legislature through the public use clause, this paper discusses whether any confidence in our property rights be restored through the just compensation clause in the form of restitutionary compensation, rather than the traditional, and myopic, “fair market value” standard. This paper discusses the historical presumption against restitution, elucidated through Bauman v. Ross over a century ago, is founded upon (1) the idea that the public should not be made to pay any more than necessary to effect a public project, and (2) the idea that the …

Breaking Down Barriers To U.S. Investment In Vietnam's Real Estate Market, Stephanie L. Strike

Washington International Law Journal

Despite great progress in Vietnam’s general investment environment, barriers exist which impede U.S. investment in Vietnam’s real estate market. While Vietnam remains a socialist country, drastic liberalization of its market structure and investment laws have made Vietnam a more attractive environment for most U.S. investors. However, barriers remain for U.S. investors seeking to invest in Vietnam’s real estate, specifically property developers wishing to build tourism complexes. These barriers include weak transportation infrastructure, financial and humanitarian issues posed by site clearance, and lack of accountability in the real estate licensing system. To facilitate U.S. investment in Vietnam’s real estate, Vietnam should …

A Taking Without Just Compensation? The Constitutionality Of Amortization Provisions For Nonconforming Uses, Julie R. Shank

West Virginia Law Review

No abstract provided.

The History Of School Trust Lands In Nevada: The No Child Left Behind Act Of 1864, Christopher J. Walker

Nevada Law Journal

No abstract provided.

Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster

ExpressO

In a refreshingly clear and comprehensive decision issued towards the end of its 2004 Term, the Supreme Court explained in Lingle v. Chevron (2005) that the Takings Clause requires compensation only for the effects of a regulation on an individual’s property rights. Under the substantive due process doctrine, by contrast, courts engage in a deferential inquiry into both a regulation’s validity and the means by which the regulation attempts to meet the government’s objective. Lingle’s explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), …

The New Nuisance: An Antidote To Wetland Loss, Sprawl, And Global Warming, Christine A. Klein

ExpressO

In 1992, Lucas v. South Carolina Coastal Council held that governments must provide compensation to landowners whenever regulations deprive land of all economically beneficial use, unless the restrictions inhere in background principles of the state’s law of property and nuisance. Such background principles, the Court added, may evolve in accordance with new knowledge. Thus, nuisance became “new” in two critical respects: it expanded from offense to affirmative defense, and it explicitly recognized that new learning continuously redefines the boundaries of nuisance. More than a dozen years have passed since Lucas, and much is new: The years have brought a shift …

Human Worth As Collateral, Rashmi Dyal-Chand

ExpressO

Human worth has taken on a surprising new role: that of market asset. Specifically, lenders in radically different contexts are using their borrowers’ human worth as collateral in loan transactions. The two examples of this new collateralization that I examine are credit card lending in the United States and microlending programs in the Third World. I conclude that the use of human worth in these two contexts is too similar to be coincidental. Rather, this new collateralization is a product of globalization. For those interested in the effect of law on globalization, this convergence in the market for credit teaches …

The Convicted Felon As A Guardian: Considering The Alternatives Of Potential Guardians With Less-Than-Perfect Records, Mike Jorgensen

ExpressO

Courts require discretion in appointing guardians. Oftentimes, the legislature prevents the courts from exercising discretion when statutes are enacted that prohibit felons from serving as guardians under any circumstances. Yet, the need for guardians is increasing and will continue to do so due to the exponential growth in the aging elder population.

At the same time, however, the pool of potential guardians is shrinking in size. Additionally, the same reducing pool of eligible guardians is being attenuated further by having a disproportionate amount of felonies.

The groups most impacted by these trends are the indigent and the minorities. The indigent …

The Right To Roam, Jerry L. Anderson

ExpressO

In 2000, Britain enacted a “right to roam” in the Countryside and Rights of Way Act (CRoW). At first glance, CRoW appears to be a dramatic curtailment of the landowner’s traditional right to exclude: it opens up all private land classified as “mountain, moor, heath, or down” to the public for hiking and picnicking. Yet, when viewed in the light of history, CRoW may be seen as partially restoring to the commoner rights lost during the enclosure period, when the commons system ended. CRoW also represents a return to a functional rather than spatial form of land ownership, allowing more …

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court: Part I-A English Stories, Marc L. Roark

ExpressO

This is part I-A of a Book I am working towards on the narratives and fictions of sovereign immunity. The goal in this part is to look before the American republic and towards the background in which American Sovereignty came to be shaped by -- the feudal notion of the sovereign; the Lockean response, and the Blackstonean doctrine. The first part looks at the legal fictions surrounding the kingship, their sources and their effects. The Second part looks to the specific ways of treating the sovereign in law, namely viewing King as Property owner or patriarch, Trustee, and Constitution.

Justice Thomas' Kelo Dissent, Or, "History As A Grab Bag Of Principles", David L. Breau

ExpressO

In Kelo v. City of New London, the Supreme Court held 5-4 that creating jobs and increasing tax revenues satisfy the Fifth Amendment’s requirement that property be "taken for public use." Justice Thomas joined the dissenters, but authored a separate opinion arguing that the Public Use Clause was originally understood as a substantive limitation that allowed the government to take property only if the government owns, or the public actually uses, the taken property. This article demonstrates that much of the historical evidence that Justice Thomas provides in his dissent to support a narrow original understanding of public use in …

Modern Public Trust Principles: Recognizing Rights And Integrating Standards, Alexandra B. Klass

ExpressO

The public trust doctrine has a long history from its beginnings as an obligation on states to hold lands submerged under navigable waters in trust for the public, to its resurgence in the 1970s as a protector of natural resources, to its influence on state statutory and constitutional law as the public embraced environmental protection principles. However, many have argued that the public trust doctrine has not lived up to its potential as a major player in environmental and natural resources law. This article proposes a new framework for the public trust doctrine as a state tool for environmental protection …

The Fair Housing Act And Disparate Impact In Homeowners Insurance, Dana L. Kaersvang

Michigan Law Review

This Note argues that because homeowners insurance is central to homeownership, the FHA applies to insurance underwriting policies, such as those mentioned above, that have a disparate impact on minority potential homeowners. Part I considers whether the FHA applies to homeowners insurance and concludes that homeowners insurance is covered by the Act. Part II goes on to argue that the FHA applies to homeowners insurance even where the discrimination results from disparate impact, rather than from disparate treatment. Finally, Part III analyzes the above-mentioned policies of the insurance industry under the FHA disparate impact standard.

Information Asymmetries And The Rights To Exclude, Lior Jacob Strahilevitz

Michigan Law Review

The American law generally regards the "bundle of rights" as property's dominant metaphor. On this conception of property, ownership empowers an individual to control a particular resource in any number of ways. For example, he may use it, transfer it, exclude others from it, divide it, and perhaps even destroy it. The various rights in the bundle, however, are not equal in terms of importance. To the contrary, American courts and commentators have deemed the "right to exclude" foremost among the property rights, with the Supreme Court characterizing it as the "hallmark of a protected property interest" and leading property …

Tough Love: The Dramatic Birth And Looming Demise Of Unclos Property Law (And What Is To Be Done About It), Peter S. Prows

ExpressO

The 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) represents the culmination of thousands of years of international relations, conflict, and now nearly universal adherence to an enduring order for ocean space that is the most significant achievement for international law since the UN Charter. UNCLOS establishes international property law erga omnes that, by legal and political necessity, required a bargained consensus to be effective. This bargain, in essence, provided coastal States with extended but limited jurisdictions, while ensuring that the seabed and its mineral resources beyond were the “common heritage of mankind” that would peaceably and …

Eminent Domain Reform In Missouri: A Legislative Memoir, Dale A. Whitman

Faculty Publications

The Missouri General Assembly, like a number of other state legislatures, undertook to reform its statutes relating to eminent domain during the 2006 legislative session. This article is the story of that effort and an analysis of the result. I write from a personal perspective. I was fortunate to have been personally involved in many of the decisions that were made as the bill, House Bill 1944, made its was through the legislative process. This opportunity was, I think, fairly unusual for a law professor; in thirty-seven years of teaching property law, I had never previously been so closely engaged …